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Legal aid, Sentencing and Punishment of Offenders Bill Bill No 205 of 2010-12

Published Monday, July 4, 2011

This Research Paper has been prepared for the second reading of the Legal Aid, Sentencing and Punishment of Offenders Bill. The Bill covers a diverse range of issues, including legal aid; litigation funding and costs; sentencing; bail, remand and release on licence; prisoners’ pay and employment; out of court disposals and knives.

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The Legal Aid, Sentencing and Punishment of Offenders Bill had its first reading on 21 June 2011, was published the following day and will have its second reading on 29 June 2011.

The Bill’s provisions cover a diverse range of issues:

Legal aid: The Bill would reverse the position under the Access to Justice Act 1999, whereby civil legal aid is available for any matter not specifically excluded. The Bill would take some types of case out of scope for legal aid funding and cases would not be eligible for funding unless of a type specified in the Bill. As it stands, the Bill would allow the Lord Chancellor by order to omit services from this list but confers no power to add new services. The Bill paves the way for further changes (through secondary legislation) to the financial criteria for eligibility for civil legal aid and extends the scope for means-testing for criminal legal aid. The Bill would also abolish the Legal Services Commission.

Litigation funding and costs: The Bill makes various provisions in respect of civil litigation funding and costs, taking forward the recommendations of the Jackson Review and the Government’s response to that review. The Bill’s provisions cover (amongst other things) conditional fee agreements, damages-based agreements and other matters relating to civil litigation funding and costs in divorce and dissolution proceedings. It also deals with costs that might be awarded from central funds in criminal cases.

Sentencing: Following the consultation in the Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, the Bill makes changes to sentencing provisions. Examples include: giving courts an express duty (rather than the current power) to consider making compensation orders where victims have suffered harm or loss; reducing the detailed requirements on courts when they give reasons for a sentence; allowing courts to suspend sentences of up to two years rather than 12 months; and amending the court’s power to suspend a prison sentence. New powers would allow curfews to be imposed for more hours in the day and for up to 12 months rather than the current six, and courts would have more discretion with regard to various orders for young offenders. In addition, the Bill would repeal provisions in the Criminal Justice Act 2003 which would have increased the maximum sentence a magistrate’s court could impose from six to 12 months. These were part of plans to introduce a new form of sentence (“Custody Plus”) for people with sentences of under a year. However, they never came into force because of resource constraints. There are also changes to remove some of the restrictions on the use of recalls to prison.

Bail and remand: changes in the Bill on bail and remand aim to reduce the number of those who are unnecessarily remanded into custody. Under the new “no real prospect” test, people would be released on bail if they would be unlikely to receive a custodial sentence. There were mixed reactions when this was proposed, with many welcoming the move, but some questioning whether the outcome of a court case could be predicted at the outset in this way. Where a person aged under 18 has to be remanded into custody, the Bill would ensure that in most cases they would be remanded into local authority accommodation.

Release on licence: The Bill amends provisions relating to the release and recall of prisoners. The Bill’s provisions include (amongst other things) the simplification of the calculation of crediting periods of remand on bail, additional restrictions for early release on Home Detention Curfew and the supervision of young adult prisoners released from sentences of less than 12 months.

Prisoners’ pay and employment: The Bill gives the Secretary of State new powers to make prison rules about prisoners’ employment, pay and deductions from their pay. The intention is that prisoners should make payments which would support victims of crime.

Out of court disposals: Here, the Bill introduces a penalty notice with an education option and provision for conditional cautions to be given without the need to refer the case to the relevant prosecutor. New conditions could be attached to a conditional caution given to a foreign national offender without leave to enter or stay in the United Kingdom. There would also be a new kind of youth caution, and youth conditional cautions would be amended.

Knives: The Bill would create a new offence of threatening with an offensive weapon or an article with a blade or point thereby creating an immediate risk of serious physical harm. A minimum sentence of 6 months imprisonment would normally be given to persons over 18 found guilty of this offence.

Commons Briefing papers RP11-53

Authors: Catherine Fairbairn; Gabrielle Garton Grimwood; Pat Strickland

Topics: Administration of justice, Criminal law, Legal aid, Prisons

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